Hurt, J.
Patterson was tried and convicted of slander under articles 645 and 646 of the Criminal Code, from which judgment of conviction he appeals to this court. Upon the trial he proposed to prove acts, conduct and conversations done, performed and had by and with the "prosecutrix, Smith, tending to show the want of chastity .generally. The State objected upon the grounds, 1st, that, as the assignment of slander was made upon illicit intercourse between the prosecutrix and defendant and ■one Joseph Perkins, the proof must be confined to these charges. 2d. That as the State was • the party to this prosecution, and not the prosecutrix, her declarations ■could not bind the State, and were therefore inadmissible.
In order to determine whether the court below acted properly in sustaining these objections, it is necessary that the constituent elements of the offense charged be precisely understood. Of what, then, is this offense composed? Article 645, Penal Code, provides: “If any person shall, orally or otherwise, falsely or maliciously, or falsely and wantonly, impute to any female in this •State, married or unmarried, a want of chastity, he shall [472]*472be deemed guilty of slander.” Stripped of the intents,, the offense consists in “imputing the want of chastity to a female.” This may be done in a general way, or by charging her with certain acts of unchastity. The-charge, however, of the want of chastity, whether imputed generally or by alleging particular acts with certain, individuals, is one of the essential necessary elements of the offense.
Under article 646 it is not required of the State to show the imputation false, but the defendant may justify by showing it to be true. It follows, therefore, that if unchaste there is no offense. If, then, the defendant has the right to sho*w the imputation to be true, and not false, is he confined to her general reputation as the only means by which to make such proof ? We think not. A general unfavorable reputation as regards this want of character, in a great many instances, has for a basis,— foundation,—■ one act of illicit intercourse. Not only so, but suspicious circumstances, wfithout guilt, not unfrequently become the corner stone upon which the envious- and abandoned build for the innocent a reputation withering and blasting, which cannot be reclaimed by the most chaste and innocent life.
If, then, this general reputation springs from, and has a basis or foundation in one act, or in suspicious circumstances, by what principle of reason can these acts and circumstances be held inadmissible ? If the foundation of the edifice be removed, can the building stand ? No conclusion can ever' rise higher and be more certain than the facts from which it is drawn or made.
We are, therefore, of the opinion that the court below erred in sustaining the objections to the evidence proposed by the defendant. We are of the opinion that the-defendant was entitled to prove each and every fact proposed by him, as shown by the. bills of exceptions.
The objections to the sufficiency of the indictment are-[473]*473not well taken. (The Reporters will give the indictment and bills of exceptions.)
The charge of the court, upon another trial, will be conformed to the principles- above enunciated. For the error of the court, referred to above, the judgment will be reversed and the cause remanded for a new trial.
[After the rendition of the foregoing opinion, at the Galveston term, 1881, the counsel for the State filed a motion for a rehearing, and the motion was taken under advisement. At the Austin term, -1882, the motion was sustained and the judgment of conviction affirmed upon the grounds set out in the following opinion.— Reporters.]
Willson, J. At the January term, 1881, of this court at Galveston the judgment rendered in this case by the-court below was reversed by this court, and the cause was remanded for a new trial. The assistant attorney general filed a motion for a rehearing, and the case again comes before this court upon that motion.
The prosecution is for the offense of slander, under art. 645 of the Penal Code. The indictment charges that the defendant “ did wilfully, wantonly, maliciously and falsely impute, orally, to one Catherine Eugenie Smith, then and there an unmarried female in this State, a want of chastity, in this, namely, he the said Zene Patterson then and there stated to one Milton Vandegriff and one Scott Perkins, that he knew she the said Catherine Eugenie Smith was pregnant, and that he the said ZenePatterson and one Joseph Perkins had been having carnal intercourse with her the said Catherine Eugenie Smith for the space of about two years.” The indictment we hold to be good, and the evidence fully establishes the uttering of the words charged, and that they were uttered wantonly, if not maliciously.
[474]*474The principal question in the case, and the only one noticed by this court in its previous opinion, and the only one which we now propose to discuss, is as to the admissibility of certain testimony offered by the defendant. He proposed to prove certain acts and conduct on the part of the woman Smith, tending to show a want of chastity. He made no effort in a direct way to prove the truth of the imputation he had made against her, but his proposition was to prove indirectly and circumstantially that what he had said about her was trac, by proving other acts and conduct by her, which would lead to the conclusion that she would likely be guilty of the particular ■acts he had charged against her. This evidence when offered was objected to by the State, and was rejected, and the question now is, did the court below err in refusing to admit such testimony ?
The statute under which this prosecution is instituted is one of recent date. It creates an offense which, until the adoption of our revised Penal Code, was unknown in the criminal law of this State. It is an offense also which was unknown to the common law, and we are not aware of any State which has a penal statute precisely similar to this one. Hence we have been unable to find any adjudicated case bearing directly upon the question" before us, and we must therefore treat the subject as an original one, and determine it without the aid of precedents.
In order to arrive at a correct solution of the question, it is proper and necessary that we should consider and understand- the purpose and intent of this statute. What existing evil did it seek to remedy ? What were the defects in the former law regarding this evil, which this statute proposes to correct ? The existing evil was that the reputation of females for chastity was the mere plaything of wanton, malicious, worthless persons,— that the chaste character of. the purest and best women in the [475]*475land was frequently assailed and destroyed by. the foul tongue of some degraded slanderer, who was as worthless pecuniarily as in principle. What protection did the law afford against this evil? A civil action for damages; — nothing more. If it were an assault upon the woman’s person, the law denounced that as a crime, and punished it as such; but if the assault was upon her reputation for chastity, which was dearer to her than even life, then the only remedy offered was the farcical one of a civil action for damages. We say farcical, because in ninety-nine cases in a hundred the vile slanderer would be bankrupt and beyond the' reach of the law.
Free access — add to your briefcase to read the full text and ask questions with AI
Hurt, J.
Patterson was tried and convicted of slander under articles 645 and 646 of the Criminal Code, from which judgment of conviction he appeals to this court. Upon the trial he proposed to prove acts, conduct and conversations done, performed and had by and with the "prosecutrix, Smith, tending to show the want of chastity .generally. The State objected upon the grounds, 1st, that, as the assignment of slander was made upon illicit intercourse between the prosecutrix and defendant and ■one Joseph Perkins, the proof must be confined to these charges. 2d. That as the State was • the party to this prosecution, and not the prosecutrix, her declarations ■could not bind the State, and were therefore inadmissible.
In order to determine whether the court below acted properly in sustaining these objections, it is necessary that the constituent elements of the offense charged be precisely understood. Of what, then, is this offense composed? Article 645, Penal Code, provides: “If any person shall, orally or otherwise, falsely or maliciously, or falsely and wantonly, impute to any female in this •State, married or unmarried, a want of chastity, he shall [472]*472be deemed guilty of slander.” Stripped of the intents,, the offense consists in “imputing the want of chastity to a female.” This may be done in a general way, or by charging her with certain acts of unchastity. The-charge, however, of the want of chastity, whether imputed generally or by alleging particular acts with certain, individuals, is one of the essential necessary elements of the offense.
Under article 646 it is not required of the State to show the imputation false, but the defendant may justify by showing it to be true. It follows, therefore, that if unchaste there is no offense. If, then, the defendant has the right to sho*w the imputation to be true, and not false, is he confined to her general reputation as the only means by which to make such proof ? We think not. A general unfavorable reputation as regards this want of character, in a great many instances, has for a basis,— foundation,—■ one act of illicit intercourse. Not only so, but suspicious circumstances, wfithout guilt, not unfrequently become the corner stone upon which the envious- and abandoned build for the innocent a reputation withering and blasting, which cannot be reclaimed by the most chaste and innocent life.
If, then, this general reputation springs from, and has a basis or foundation in one act, or in suspicious circumstances, by what principle of reason can these acts and circumstances be held inadmissible ? If the foundation of the edifice be removed, can the building stand ? No conclusion can ever' rise higher and be more certain than the facts from which it is drawn or made.
We are, therefore, of the opinion that the court below erred in sustaining the objections to the evidence proposed by the defendant. We are of the opinion that the-defendant was entitled to prove each and every fact proposed by him, as shown by the. bills of exceptions.
The objections to the sufficiency of the indictment are-[473]*473not well taken. (The Reporters will give the indictment and bills of exceptions.)
The charge of the court, upon another trial, will be conformed to the principles- above enunciated. For the error of the court, referred to above, the judgment will be reversed and the cause remanded for a new trial.
[After the rendition of the foregoing opinion, at the Galveston term, 1881, the counsel for the State filed a motion for a rehearing, and the motion was taken under advisement. At the Austin term, -1882, the motion was sustained and the judgment of conviction affirmed upon the grounds set out in the following opinion.— Reporters.]
Willson, J. At the January term, 1881, of this court at Galveston the judgment rendered in this case by the-court below was reversed by this court, and the cause was remanded for a new trial. The assistant attorney general filed a motion for a rehearing, and the case again comes before this court upon that motion.
The prosecution is for the offense of slander, under art. 645 of the Penal Code. The indictment charges that the defendant “ did wilfully, wantonly, maliciously and falsely impute, orally, to one Catherine Eugenie Smith, then and there an unmarried female in this State, a want of chastity, in this, namely, he the said Zene Patterson then and there stated to one Milton Vandegriff and one Scott Perkins, that he knew she the said Catherine Eugenie Smith was pregnant, and that he the said ZenePatterson and one Joseph Perkins had been having carnal intercourse with her the said Catherine Eugenie Smith for the space of about two years.” The indictment we hold to be good, and the evidence fully establishes the uttering of the words charged, and that they were uttered wantonly, if not maliciously.
[474]*474The principal question in the case, and the only one noticed by this court in its previous opinion, and the only one which we now propose to discuss, is as to the admissibility of certain testimony offered by the defendant. He proposed to prove certain acts and conduct on the part of the woman Smith, tending to show a want of chastity. He made no effort in a direct way to prove the truth of the imputation he had made against her, but his proposition was to prove indirectly and circumstantially that what he had said about her was trac, by proving other acts and conduct by her, which would lead to the conclusion that she would likely be guilty of the particular ■acts he had charged against her. This evidence when offered was objected to by the State, and was rejected, and the question now is, did the court below err in refusing to admit such testimony ?
The statute under which this prosecution is instituted is one of recent date. It creates an offense which, until the adoption of our revised Penal Code, was unknown in the criminal law of this State. It is an offense also which was unknown to the common law, and we are not aware of any State which has a penal statute precisely similar to this one. Hence we have been unable to find any adjudicated case bearing directly upon the question" before us, and we must therefore treat the subject as an original one, and determine it without the aid of precedents.
In order to arrive at a correct solution of the question, it is proper and necessary that we should consider and understand- the purpose and intent of this statute. What existing evil did it seek to remedy ? What were the defects in the former law regarding this evil, which this statute proposes to correct ? The existing evil was that the reputation of females for chastity was the mere plaything of wanton, malicious, worthless persons,— that the chaste character of. the purest and best women in the [475]*475land was frequently assailed and destroyed by. the foul tongue of some degraded slanderer, who was as worthless pecuniarily as in principle. What protection did the law afford against this evil? A civil action for damages; — nothing more. If it were an assault upon the woman’s person, the law denounced that as a crime, and punished it as such; but if the assault was upon her reputation for chastity, which was dearer to her than even life, then the only remedy offered was the farcical one of a civil action for damages. We say farcical, because in ninety-nine cases in a hundred the vile slanderer would be bankrupt and beyond the' reach of the law. Experience had taught that this civil remedy was wholly inadequate and ineffectual to suppress the evil, and that legislation was needed to protect the character of our chaste women from the foul breath of the irresponsible slanderer. It was to afford this protection that this statute was enacted, and in construing it we must give to it such meaning as will be most consistent with its language and with its object and spirit.
It says to the slanderer, if you falsely and maliciously, or falsely and wantonly, impute a want of chastity to a female, you have committed an offense, and shall be punished therefor, unless you prove the truth of the imputation, or that the.woman’s general reputation for chastity is bad. The law, in its mercy, permits him to justify his slander by proving the truth of it, or by proving that the woman’s general reputation for chastity is bad. (Penal Code, art. 646.) It graciously permits him to do this, notwithstanding his imputation against her may have been made by him maliciously. But, while it grants to him the privilege of proving the truth of the imputation he has made, does it also extend to him the privilege of proving, ad libitum, other and different acts and conduct of the female tending to prove, or even proving, that she is an unchaste woman ? If such is to [476]*476be the rule would it not destroy the intended efficacy of this statute ? Would it not make this law, instead of a protection to the reputation of chaste women, as it is intended to be, a trap and a snare in which might be caught and ruthlessly crushed the reputations of the best and purest women in our State ?
The case now before us is a good illustration of what, would be the practical working of such a rule. Here the woman is accused of certain specific acts and conduct imputing a want of chastity. She and the State are fully prepared to prove the falsity of this imputation. She is also fully prepared to prove that her general reputation for chastity is good, and the State is also prepared for this issue. But the defendant, without pretending to prove the truth of the imputation he has made, or without showing her general reputation for chastity to be bad, undertakes to avoid the real issue in-the case, and to prove that this woman had been guilty of other acts and conduct than those he had imputed to her, and which tended to show that she was not a chaste woman. How could it be reasonably expected that the State or the slandered woman could be prepared to disprove these collateral and unexpected issues ? They might be as false as-the tongue of perjury could invent, and yet, being brought forward unexpectedly, the State would in all probability be unable to make their falsehood apparent at the trial. What would be the result? The defendant would be acquitted, and the woman’s reputation would be sacrificed — judicially murdered.
It has been well said by Justice Campbell in the case of Proctor v. Houghtaling, 37 Michigan, 41, that, “ It would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific rumors, or charges against her not going to the direct issue in the cause. She could have no means of defense against malicious fabrications, which are by no means [477]*477.unusual in such .cases, and the reputation of the purest persons could easily he ruined or damaged by allowing free scope to such testimony. As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses, at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent.” The opinion from ydiich we have quoted was rendered in a civil action for slander, but the reasoning, we think, is peculiarly applicable to the question before us.
Again, to further illustrate our idea of such testimony, suppose the case of a woman who has lived in a community several years, and during that time has conducted herself reputably,—who by her conduct has proved herself to be a kind, virtuous, Christian woman. She is the loving wife of a happy husband — the affectionate mother of innocent children. She moves in the best society, is respected and beloved by all, and is an ornament and a blessing to the community. The vile tongue of the slanderer imputes to her some specific act or conduct showing that she is not a virtuous woman. The slanderer is indicted. The utter falsity of the imputation he has made is overwhelmingly proved, and that it was made by him wantonly and maliciously. More than this, he admits .perliaps that he has maliciously lied about this woman, but he sneeringly says, “I can prove that, five or ten years ago, when this woman was a gay, giddy girl, she committed acts of indiscretion, or worse than that, if you please, that she gave away her virtue. Yes,’ I propose, in order to shield myself from this prosecution, to go back over the life of this woman, and prove every indiscretion of which she has ever been guilty. I propose to disregard her present good character, her prudent, virtuous, Christian life for .years past, and to show that, however chaste she may now be, she was unchaste in former [478]*478times. She will be wholly unprepared for these issues, and I will overwhelm and min her, and destroy the fair name which she has established in the world.”
If the law were to grant to the slanderer such license, what woman, however pure and unblemished bright be her lif e and reputation, would not shudder at the thought of seeking protection under this statute ? To prosecute the slanderer would be but to expose herself to the poisoned darts of malice and perjury, and while she might enter into the prosecution with an unblemished reputation, she would most likely come out of it with her character blackened, and the finger of scorn pointing at her as an object to be loathed and avoided.
We cannot agree to give an interpretation to this statute which in our opinion would not only render it inoperative for good, but would make of it a dangerous trap and delusion for the woman who might have the temerity to appeal to it for protection. While we have no authorities directly in point, to cite in support of this view of the law, we have found, ample authority in analogous cases, and which we think applicable to the question before us. We refer to the following: Proctor v. Houghtaling, 37 Mich. 41; Wilson v. Apple, 3 Ohio, 270; Duval v. Davey, 32 Ohio State R. 604; Mathews v. Davis, 4 Bibb (Ky.), 173; Andrews v. Van Duzer, 11 Johns. (N. Y.) 38; Ormsby v. Douglass, 2 Abbott’s Pr. R. (N. Y.) 407; Stiles v. Comstock, 9 Howard’s Pr. R. (N. Y.) 48.
We therefore conclude that in a prosecution under this statute, the defendant in justification may prove, 1. That the particular imputation which he has made against the female is true. 2. That her general reputation for chastity at the time the slander was uttered by him was bad. But that he cannot be permitted to prove any other acts or conduct imputing a want of chastity, except those specifically embraced in the imputation made by him.
[479]*479The action of the-court below in refusing the testimony • offered by defendant, and the charge of the court also, being in accordance with the views we have expressed, the motion for a rehearing is granted, and the judgment of conviction is affirmed.
Rehearing granted and judgment affirmed.